VIDMAR v. SIGMUND (06/15/60)

June 15, 1960

VIDMARv.SIGMUND, APPELLANT.

Appeals, Nos. 132 and 140, April T., 1960, from order of Court of Common Pleas of Allegheny County, April T., 1955, No. 1750, in case of Pauline Vidmar et al. v. Margaret M. Sigmund, administratrix of estate of Harry E. Sigmund, Jr., also known as Harry Sigmund. Order affirmed.

This is an appeal by Margaret M. Sigmund, administratrix of the Estate of Harry E. Sigmund, Jr., also known as Harry Sigmund, the defendant-appellant, from the order of the Court of Common Pleas of Allegheny County granting a new trial to Pauline Vidmar and Debra Lynn Sigmund, her minor daughter.

Pauline Vidmar, in her own right, and as guardian for her daughter, Debra Lynn Sigmund, brought this action in trespass to recover damages for personal injuries inflicted on them, as the result of an assault and battery by Harry Sigmund, the child's father, since deceased. At the trial of the case, the court below directed a verdict in favor of the appellant and against the minor appellee on the theory of in loco parentis. Pauline Vidmar was awarded damages of $285.57 by the jury. A motion for a new trial for both was filed. In the case of the minor it was argued that the verdict was against the weight of the evidence and contrary to law, and in the case of the mother, that the verdict was capricious and inadequate. The court below agreed with the appellees and awarded a new trial to each of them. This appeal followed.

Harry Sigmund, deceased, and Pauline Vidmar, had for a long time maintained a meretricious relationship. Pauline had two natural daughters as a result of this relationship, Harriet Medved and Debra Lynn Sigmund. On April 24, 1954, the decedent and the appellee had a fight in their home in which she was severely beaten. Harriet who was thirteen at the time and eighteen at

[ 192 Pa. Super. Page 358]

the time of the trial was the only witness to the occurrences involving mother and daughter.

She testified that she was awakened by her mother's scream and heard her call out, "please, please don't hit me"; that her mother ran past her to the kitchen and she was covered with blood; that he "ran after her in the kitchen and he grabbed her and kept beating her." She got away again "and my father caught her in the outside hall." He caught her and hit her "so hard that she stumbled backwards... hit a chair... and he pushed her over a chair with his knee in her stomach and kept hitting her with his fist." Harriet had picked up the infant Debra from her crib and was carrying her at this time. She tried to get her father to stop beating her mother but was unsuccessful. She took the child back to her crib and secured her father's gun from the bedroom, she pointed the gun at her father and told him to stop beating her mother. He paid no attention to the gun but came toward her cursing and threatening her. She retreated to her room, locked the door and put away the gun. She then picked up Debra and hearing her father come, retreated with the child to the steps in order to leave the apartment. Her father caught up with her as she was reaching the head of the stairway. He was cursing and abusing her with vulgar names, grabbed her by the arm and pushed her so that she reached the stairway, stumbled down several steps, broke her heel and the child, while still in her arms, was thrown against the wall striking her head. It is conceded that Debra suffered an aggravation of a skull fracture.

The appellant contends that the directed verdict should stand against the minor, not only on the ground that the father was immune from an action by an unemancipated minor child, but, that the father had a parental privilege to punish and chastise ...

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